2011 November 15

Elfarnawani v. International Olympic Committee, 2011 ONSC 6784

The Ontario Superior Court of Justice stayed the plaintiff’s defamation action on the basis that the plaintiff had failed to lead any evidence of “publication” in Ontario and therefore had failed to prove that the alleged tort of defamation was committed in Ontario. The Court noted that while the allegedly defamatory material was posted by the defendant on its Internet website “thereby making it available to anyone in the world with access to the internet,” that material would only be “published” in Ontario “if someone other than the plaintiff, or his legal representatives or agents, in fact accessed the allegedly defamatory material posted on the IOC website.” The Court held that merely posting material on an Internet website does not constitute publication, which only occurs when and wherever a third party downloads or views the impugned material from the website, citing Braintech Inc. v. Kostiuk, [1999] B.C.J. No. 622 (C.A.) at para. 58-63; Dow Jones Co. Inc. v. Gutnick (2002), 194 Aust.L.R. 433 (H.C.) at para. 44; Barrick Gold Corp. v. Blanchard and Co., [2003] O.J. No. 5817 (S.C.); Crookes v. Holloway 2007 BCSC 1325 (CanLII), (2007), 75 B.C.L.R. (4th) 316 (S.C.) at para. 26; affirmed: 2008 BCCA 165 (CanLII), (2008), 77 B.C.L.R. (4th) 201 (C.A.); Research in Motion Ltd. v. Visto Corp., [2008] O.J. No. 3671 (S.C.J.) at para. 87-92; Crookes v. Wikimedia Foundation Inc., [2009] B.C.J. No. 1832 (C.A.) at para. 80; affirmed: 2011 SCC 47 (CanLII), 2011 SCC 47; J.-G. Castel and J. Walker, Canadian Conflict of Laws (2005), 6th ed.), vol. 1, at § 11.12, at pp. 11-55 to 11-64, vol. 2, at § 35.8, at p. 35-18. The necessary “publication” may also occur in any particular location that appears to have been specifically “targeted” by the posting of the allegedly defamatory material. See: Black v. Breeden (2010), 102 O.R. (3d) 748 (C.A.) at para. 32-42; presently under reserve in the Supreme Court of Canada: [2010] S.C.C.A. No. 387; Bangoura v. Washington Post 2005 CanLII 32906 (ON CA), (2005), 258 D.L.R. (4th) 341 (Ont.C.A.) at para. 34; leave refused: [2005] S.C.C.A. No. 497.

The Court held that publication within Ontario could not be presumed in favour of the plaintiff. “Under the Libel and Slander Act …defamatory words in a newspaper or in a broadcast are “deemed to be published.” However, as the Supreme Court of Canada recently observed in Crookes v. Newton, at para. 14, there is “no such presumption in relation to material published on the Internet.” Any significant shift in policy in relation to this issue would have to come from the Legislature. Further, the issue is clearly not a matter that is properly the subject of judicial notice. Accordingly, the issue of “publication” is a matter of proof, by evidence, in each individual case. By failing to lead any evidence at all of “publication” in Ontario, the plaintiff has failed to prove that the alleged tort of defamation was committed in Ontario.”